(..2..)

DEFINITIONS

Table of Contents

(Ss. 6 TO 25)

QUESTION BANK

Q.1. Distinguish between bailable and non-bailable offences. Under what circumstances bail may be granted in case of non-bailable offences?

Q.2. Define cognizable offence and when police can arrest any person without a warrant

SHORT NOTES

Distinction between cognizable and non-cognizable offence

SYNOPSIS

DEFINITIONS (S. 2):-

I] “BAILABLE” AND “NON-BAILABLE” OFFENCES (S. 2 (A))

A) Definition

1) Bailable offence (S. 2 (a))

2) Non- Bailable offence (S. 2 (a))

B) Difference between ‘bailable’ and ‘non-bailable offences’

1) Seriousness

2) As of right

3) Police Custody

II] “COGNIZABLE OFFENCES AND COGNIZABLE CASES” AND

“NON-COGNIZABLE OFFENCES AND NON-COGNIZABLE CASES” (S. 2 (C)

A) Definitions

1) “Cognizable offence and “Cognizable case” (S. 2 (c))

2) “Non-Cognizable offence” and “Non-Cognizable Case” (S. 2 (c))

B) Difference between ‘cognizable’ and ‘non-cognizable offences’

1) With/ without warrant

2) Seriousness

3) Non-cognizable case

C) Provisions relating to cognizable offences

III] “WARRANT CASE” AND “SUMMONS CASE” (S. 2 (w) and 2 (x))

A) Definitions

1) Summons Case (S. 2 (w)

2) Warrant case (S. 2 (x)

B) Difference between a summons case and a warrant-case

1) Framing of a charge

2) Plead guilty

3) Discharge accused

4) Withdrawal of case

5) Conversion of case

6)When charge reveals both summons and warrant case

7) Split of charges

8) Definitions

9) Initiated by

10) Opportunities of cross-examination

11) Summons/ Warrant issued

IV] “COMPLAINT” (S. 2 (D))

A) Definition (S. 2 (d)
B) Essentials of Complaint
C) Police Report
D) Difference between “Complaint” and “First Information Report (FIR)”

1) Seriousness

2) As of right

3) Police Custody

V] CHARGE, CHARGE-SHEET

A) Charge (S/ 2 (b))
B) Charge Sheet

VI] INVESTIGATION, INQUIRY, AND TRIAL

A) Investigation
B) Inquiry (S. 2 (g))

Difference between “Investigation” and “inquiry”

1) Conducted by

2) Object

3) Stage

C) Trial

1) Nature of proceeding

2) End of proceeding

3) Stage

VII] FIRST INFORMATION REPORT

VIII] VICTIM

DEFINITIONS (S. 2):-

We will discuss some of the important definitions below-

I] “BAILABLE[1]” AND “NON-BAILABLE[2]” OFFENCES (S. 2 (A)):-

a) Definition:-

From the point of view of bail, the offences are divided into two parts, viz.- (1) Bailable and (2) Non-bailable.

1) Bailable offence (S. 2 (a)):-

‘Bailable Offence’ means an offence-

(i) which is shown as bilabial in the First Schedule of the Code, or

(ii) which is made bailable by any other law for the time being in force.

Schedule I to the Code lists bailable offences mentioned under the Indian Penal Code, e.g., being a member of an unlawful assembly (S. 143), joining an unlawful assembly (S. 144), rioting (S. 147), absconding to avoid service of summons (S. 172), giving false evidence (S. 193), etc. Offences under any other law are bailable if they are punishable with imprisonment of up to 3 years or with a fine only. Other offences are non-bailable.

2) Non- Bailable offence (S. 2 (a)):-

Any other offence (not mentioned above) is a ‘non-bailable offence’.

Schedule –I of the Code specifies which offences (from the Indian Penal Code or any other penal law) are bailable and which are not.

Schedule I to the Code gives a list of non-bailable offences mentioned under the Indian Penal Code, e.g. Murder (S. 302), offence of theft (S. 379), Extortion (S. 384), Robbery (S. 392), etc. Offences under any other law are non-bailable if punishable with imprisonment for more than 3 years.

B) Difference between ‘bailable’ and ‘non-bailable offences’:-

1) Seriousness:-

Bailable offences are considered less serious, whereas non-bailable offences are more serious in nature.

2) As of right:-

In bailable offences, bail can be claimed as a right by an accused person. The court or police officer is bound to release the person from custody upon furnishing security or surety (of the appropriate amount).

However, in non-bailable offences, the accused person cannot ask for bail as of right. However, this does not mean that bail cannot be granted in such offences. The police officer or court has the discretion to grant bail after considering the facts and circumstances of each case.

3) Police Custody:-

In ‘bailable offences, ’ the Court cannot remand the accused to police custody if he is prepared to give bail. However, in ‘non-bailable’ offences, the court can remand the accused to police custody.

II] “COGNIZABLE OFFENCES[3] AND COGNIZABLE CASES” AND “NON- COGNIZABLE OFFENCES[4] AND NON-COGNIZABLE CASES” (S. 2 (C)

A) Definitions:-

1) “Cognizable offence and “Cognizable case” (S. 2 (c)) :-

“Cognizable offence” is an offence, and “Cognizable case” is a case for which a police officer may arrest an accused without a warrant.

Schedule I to the Code specifies which offences (from the Indian Penal Code or from any other special penal law) are cognizable and which are not. For example, it gives a list of cognizable offences mentioned under the Indian Penal Code, e.g., Murder (S. 302), theft (S. 379), Extortion (S. 384), Robbery (S. 392), etc. The offences that are not cognizable are non-cognizable, and vice versa.

2) “Non-Cognizable offence” and “Non-Cognizable Case” (S. 2 (c)):-

“Non-cognizable offence” is an offence, and ‘Non-cognizable case” is a case for which a police officer has no authority to arrest the accused without a warrant.

Schedule -I of the Code specifies which offences (from the Indian Penal Code or any other special penal law) are cognisable and which are not cognisable. It gives a list of non-cognizable offences mentioned under the Indian Penal Code, e.g. owner or occupier of land not giving information of riot etc. (S. 154), Public servant disobeying the order of the law (S. 166), absconding to avoid service of summons (S. 172), etc. Offences under any other law are non-cognizable if punishable with imprisonment of up to 3 years or with a fine only. Other offences prescribing the punishment of imprisonment above 3 years are cognisable.

If a case involves one or more cognizable offences, it would be a cognizable case even if other offences may be non-cognizable.

B) Difference between ‘cognizable’ and ‘non-cognizable offences’:-

1) With/ without warrant:-

In Cognizable offences, Police officers can arrest the accused without a warrant from the court, whereas in non-cognizable offences, police officers cannot arrest the accused without a warrant from the court.

2) Seriousness:-

Non-cognizable offences are considered less serious, whereas cognizable offences are considered as serious.

3) Non-cognizable case:-

A case involving one or more cognizable offences would be a cognizable case even if other offences may be non-cognizable.

C) Provisions relating to cognisable offences:-

The Code lays down the following provisions in connection with cognizable offences-

1) A police officer may, without an order from a Magistrate and without a warrant, arrest any person who is concerned with any cognizable offence (S. 41).

2) Police officers can interpose to prevent cognizable offence (S. 149)

3) A police officer can arrest a person designed to commit any cognizable offence (S. 151),

4) When any information disclosing a cognizable offence is given to the officer in charge of a police satiation, he has to register the case (F.I.R) on the basis thereof (S 154).

5) If a police officer has reason to suspect the commission of a cognizable offence, he should forthwith send a report of the same to the competent Magistrate and shall proceed to investigate the facts and circumstances of the case and, if necessary, take measures for the discovery and arrest the offender (S. 157).

6) On receiving a police report (under S. 157), the Magistrate may direct investigation or dismiss the case if there is no sufficient ground for investigation (159).

III] “WARRANT CASE[5]” AND “SUMMONS CASE” (S. 2 (w) and 2 (x) :-

The Code classifies all criminal cases into ‘summons cases’ and ‘warrant cases’.

A) Definitions:-

1) Summons Case (S. 2 (w):-

‘Summons case’ means a case relating to an offence and not a warrant case.

In other words, a summons case is a case punishable with a fine only or with imprisonment for not more than two years or with both.

2) Warrant case (S. 2 (x):-

‘Warrant case’ means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

In other words, all cases in which the offence is punishable with death, imprisonment for life or imprisonment for a term exceeding two years are warrant cases, and all other cases (not answering this description) are summons cases.

This division of cases into summons and warrant cases is based on the nature of the punishment prescribed to that offence. In other words, this division is based on the seriousness of the offence. Generally, serious offences are cognizable offences and cases relating to serious offences are called ‘warrant cases’, whereas those offences which are not very serious are called non-cognizable offences and cases as ‘summons cases’.

In summons cases and warrant cases (unless the Magistrate thinks fit), a warrant is to be issued to the accused to remain present before the court to answer the allegations against him.

B) Difference between summons case and warrant-case:-

The procedure for trial of warrant cases is contained in Chapter XIX of the Code, whereas the trial of summons cases is to be found in Chapter XX. The two procedures differ in several respects; the differences are as follows-

1) Framing of a charge:-

In a warrant case, a charge is to be framed against the accused, whereas, in summons- cases, no such charge needs to be framed (only particulars of the offence of which he is accused shall be conveyed to the accused).

2) Plead guilty:-

In a summons case, after the issue of a summons, the accused may plead guilty to the charge without appearing before the Magistrate, whereas, in a warrant case, the accused needs to be present before the court to plead guilty.

3) Discharge accused:-

In a warrant case, the absence of the complainant may result in the discharge of the accused under S. 249, while in a summons case, it may result in the acquittal of the accused under S. 256.

4) Withdrawal of case:-

In a summons case, the complainant may withdraw his complaint with the permission of the Magistrate, but in a warrant case, a complaint cannot be withdrawn.

5) Conversion of case:-

A warrant case cannot be converted into a summons case, whereas a summons case can be converted into a warrant- case.

6) When the charge reveals both summons and warrant case:-

If the charge reveals both a warrant case and a summons case, a warrant case is preferred.

7) Split of charges:-

A charge under the warrant case cannot be split up into its constituents for trial under a summons case.

8) Definitions:-

All cases in which the offence is punishable with death, imprisonment for life or imprisonment for a term exceeding two years are warrant cases, and all other cases (not answering this description) are summons cases.

9) Initiated by:-

Generally, the summons cases are initiated by private persons and rarely by police, whereas warrant cases are generally to be initiated by the police.

10) Opportunities of cross-examination:-

In the Case of summons case, the witnesses are produced only for one time, and the accused has only one opportunity to cross-examine the witness. However, in warrant cases (instituted otherwise than on police reports, i.e. private complaints), the accused has two opportunities for cross-examination, first before the charge and second after the charge.

11) Summons / Warrant issued:-

In summons cases and warrant cases (unless the Magistrate thinks fit), a warrant is to be issued to the accused to remain present before the court to answer allegations against him.

IV] “COMPLAINT[6]” (S. 2 (D)) :-

A) Definition (S. 2 (d) :-

“Complaint” means-

i) any allegation[7]
ii) made orally or in writing

iii) to Magistrate,

iv) with a view to his taking action under this Code,
v) that some person, whether known or unknown, has committed an offence (but does not include a police report).

Explanation– A report made by a police officer in a case which discloses, after investigation, the commission of a non–cognizable offence shall be deemed to be a complaint, and the police officer by whom such report is made shall be deemed to be the complainant.

The word “complaint” does not include a police report, but if a Police Officer makes a report in case which discloses (after investigation) the commission of a non-cognizable offence, the same is deemed to be a complaint, and the Police Officer by whom such report is made is deemed to be the complainant.

B) Essentials of Complaint:-

A complaint in a criminal case is what a plaintiff in a civil case is. Any allegation made orally or in writing would constitute a complaint provided-

i) it must be made to a Magistrate,
ii) it must be made with a view that the Magistrate may take action on it;

iii) it must contain an allegation that some person, known or unknown, has committed an offence; and

iv) it must not be a police report (except as provided above).

There is no particular form in which a complaint should be made. It is sufficient if the complainant lays before the Magistrate a matter that would constitute an offence if proven. The substance of the allegation and not the form of the complaint is material. Sections of the offence need not be pleaded in the complaint.

C) Police Report:-

A police report has been defined as “a report forwarded by a police officer to a Magistrate under S. 173 (2)[8] of the Code”. It is the report forwarded by the police to a Magistrate in the prescribed form (as prescribed under S. 173 (2) (i) (a) to (g)) after the completion of the investigation.

The report of a police officer in a cognizable case is not a complaint. A police charge sheet, though it contains an allegation of an offence and is made to a Magistrate with a view to his taking action under the Code, is not a complaint. It is a fact that distinguishes police cases from other cases.

The police officer’s report (i.e., charge sheet) after investigation disclosing the case to be non-cognizable shall be deemed a complaint, and the police officer shall be deemed a complainant. Thus, police reports relating to the commission of non-cognizable offences are treated as complaints, and those relating to cognizable offences are not treated as complaints under the above definition.

D) Difference between “Complaint” and “First Information Report (FIR)”:-

There are the following differences between ‘Complaint’ and ‘First Information Report’: –

1) In a complaint, the allegation is made orally or in writing to a Magistrate, but the first information report is given to a police officer (in charge of the police station).

2) A complaint may relate to a cognizable or non-cognizable offence; a first information report must relate to a cognizable offence.

3) A Magistrate takes cognizance of an offence on a complaint made to him, but he cannot do so on a first information report.

4) A complaint does not include a police officer’s report; the first information of an offence may be given by any body, including a police officer.

V] CHARGE, CHARGE-SHEET

A) Charge[9] (S/ 2 (b)):-

1) According to Wharton’s Law Lexicon, ‘Charge’ is to prefer an accusation against one.

To ‘charge’ a person thus means to accuse him. The person charged is known as the ‘accused person’ or simply as an “accused”.

2) The charge is the document setting out a “precise formulation of the specific accusation made against the person who is entitled to know its nature at the earliest stage.”

3) Charge is a “formation of accusation.”

4) S. 2 (b) Defines Charge as it includes any head of charge when charge contains more heads than one.

A charge is different from an ‘allegation’ made by a complainant (incompetent) or an informant (of a crime). The difference is that the charge is drawn up by a Magistrate or Court and read over to the accused to be answered (by him) when the Magistrate or Court finds that there is a prima facie case against him. The charge is framed based on allegations and evidence in support thereof.

The provisions relating to the charge are intended to provide that the charge shall give the accused full notice of the offence charged against him. It is drawn up in writing. A charge is a basic written document containing the description of the offence, which the accused is called upon to answer. It is an important principle of criminal law that an accused must know the precise accusation against him before he is called upon to enter his defence.

The accused is entitled to know with the greatest precision what acts he is said to have committed and under what section of the penal Law his acts fall.

In summons cases, a charge is not necessary.

B) Charge Sheet[10]:-

The final report submitted by the officer in charge of the police station (under S.173 of the Code) after the investigation is completed is popularly known as a ‘charge sheet’.

VI] INVESTIGATION, INQUIRY AND TRIAL:-

A criminal case passes through three stages, viz. Investigation, inquiry and trial. An investigation is always to be conducted by a police officer or any other authorised person (other than a magistrate). It includes all the proceedings under the Code for the collection of evidence (S. 2 (h)). An “inquiry” means every inquiry that is conducted by a magistrate or court and is not a trial (S 2 (g)). Trial means the judicial process in accordance with law whereby the question of guilt or innocence of the person accused of any offence is determined.

We will discuss them in detail as follows: –

A) Investigation[11]:-

An investigation is always to be conducted by a police officer or any other authorised person (other than a magistrate), and it includes all the proceedings under the Code for the collection of evidence (S. 2 (h)).

When information of a cognizable offence is received or suspected, a police officer (in charge of a police station) investigates the commission of an offence. If the information relates to a non-cognizable offence, the police officer can investigate only after the order of a Magistrate.

Investigation of an offence consists of the following: –

1) proceeding to the spot of the incident.

2) ascertainment of the facts and circumstances of the case,

3) discovery and arrest of the suspected offender;

4) collection of evidence relating to the commission of an offence, which may consist

of- a) the examination of various persons (including the accused), and the reduction of their statements into writing if the police officer making the investigation thinks fit;

b) the search of places or seizure of things considered necessary for the investigation.

5) Form an opinion as to whether, on the material collected, there is a case to place the accused before the Magistrate for trial, and if so, take the necessary steps for the same by filing a charge sheet. After filing the charge sheet, the next stage of inquiry starts.

B) Inquiry[12] (S. 2 (g)):-

Inquiry means every inquiry, other than a trial conducted under this Code by a Magistrate or a Court.

After receiving the charge sheet, if the Magistrate is of the opinion-

1) that–

i) the case is tribal by him (according to this Code), and
ii) he is competent to impose adequate sentence on the accused,

-he may conduct a trial of the case before himself or

2) that–

i) the offence is a serious one and exclusively triable by the Sessions Court,
ii) he shall commit (transfer) the case to the court of Sessions.

Provided, the Magistrate, on the basis of the inquiry he conducted, must find that a prima facie case has been made out against the accused.

In Alim and others[13]

Court Held: – that all those proceedings before the Magistrate before the framing of a charge that does not result in a conviction can be termed inquiry.

Difference between “Investigation” and “inquiry”: –

Investigation and inquiry are conducted under the Code’s provisions but with different objects. They differ in the following respects: –

1) Conducted by:-

A police officer or some other person authorised by a Magistrate makes the investigation, whereas a Magistrate or court makes an inquiry.

2) Object:-

The object of investigation is to collect evidence while the object of inquiry is to determine the truth or falsity of certain facts with a view to taking further action thereon.

3) Stage:-

Investigation is the first stage of a criminal case and normally precedes inquiry, whereas inquiry is the second stage of a case and ordinarily comes after investigation.

C) Trial[14]:-

Trial is the last stage in a criminal case. The trial begins when the inquiry stops. Trial is not defined in the Code. It is applied to those proceedings in which the court is empowered to convict or acquit a person accused of an offence. The trial is a proceeding that involves examining witnesses and determining a cause by a judicial tribunal that has jurisdiction over it. It is a judicial proceeding that ends in the accused’s conviction or acquittal. In other words, it is an examination of the truth or falsehood of a case by examining a witness before the court on oath.

The trial commences at different stages in different types of cases. In summons cases, a formal charge is not framed; hence, trial commences when the accused appears or is brought before the Magistrate. In Warrant Cases, a formal charge is required to be framed; hence, trial commences only after the charge is framed. The stage of the trial includes appeals and revisions.

Difference between “Inquiry” and “trial”: –

Both inquiry and trial are judicial proceedings conducted by the Magistrate. They, however, differ in the following respects: –

1) Nature of proceeding:-

A trial is always in respect of an offence; an inquiry may be in respect of an offence as well as of matters that are not offences.

2) End of proceeding:-

A trial always ends in conviction or acquittal, whereas inquiry ends in the discharge or commitment of a case for trial, either by the Magistrate himself or by the Court of Sessions.

3) Stage:-

Inquiry is the second stage, and trial is the third stage in a criminal case. Inquiry precedes trial, and trial follows inquiry.

VI] FIRST INFORMATION REPORT:-

Every information relating to the Commission of Cognizable Offence shall be reduced in writing by an officer-in-charge of the police station if given orally to him. It must be read over to the informant. The information, which is reduced in writing by a police officer, should be signed by the informant. After receiving the first information report, its substance must be entered into a book, which is to be kept by such officer in the prescribed form and also in the police diary. (Discussed the topic information with the police in detail).

VIII] VICTIM (S. 2. wa):-

Victim means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged, and the expression “victim” includes his or her guardian or legal heir.

Till 2008, there was no provision to take care of victims. However, the Amendment Act of 2008 has taken care of victims by providing them with some rights.

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